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1 Whitney, Thompson & Jeffcoach LLP
Marshall C. Whitney, #82952
2 mwhitney@wtjlaw.com
Jacob S. Sarabian, #322108
3 jsarabian@wtjlaw.com
970 W. Alluvial Ave.
4 Fresno, California 93711
Telephone: (559) 753-2550
5 Facsimile: (559) 753-2560
6 Attorneys for PETER T. SIMONIAN and
PATRICIA L. SIMONIAN
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF MONTEREY
10
11 CHRISTO BARDIS, Case No. 22CV001790
12 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
13 v. DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’
14 COUNTY OF MONTEREY; PETER T. DEMURRER TO PLAINTIFF’S THIRD
SIMONIAN and PATRICIA L. SIMONIAN, AMENDED COMPLAINT
15 individually and as trustees of the SIMONIAN
TRUST DATED DECEMBER 31, 2014; and [Filed concurrently with Notice of
16 DOES 1-10 inclusive, Demurrer and Demurrer, Request for
Judicial Notice, and Declaration of Jacob S.
17 Defendants. Sarabian]
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Date: July 5, 2024
19 Time: 8:30 a.m.
Dept.: 15
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Action Filed: December 8, 2022
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ..........................................................................................................................5
4 II. RELEVANT FACTUAL BACKGROUND .................................................................................5
5 III. THE 1959 CC&RS ARE NOT ENFORCEABLE AGAINST SIMONIAN ...............................6
6 IV. THE RECORDING LAWS ALSO INDEPENDENTLY COMPEL THE FINDING
THAT THE 1959 CC&RS DO NOT APPLY TO SIMONIAN ............................................8
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V. CLAIMS FOR BREACH OF THE CC&RS FROM 1928 AND 1929 FAIL FOR
8 NUMEROUS INDEPENDENT REASONS .......................................................................10
9 A. The Court Did Not Provide Bardis Leave To Sue For Breach Of The
CC&Rs From 1928 or 1929 .....................................................................................10
10
B. Davis-Sterling Has No Application And Is Also Outside The Scope Of
11 Leave ........................................................................................................................11
12 C. Bardis Admits 1929 Are Not Recorded Against Simonian’s Property And
Therefore The Recording Statutes Protect Simonian ...............................................12
13
D. Bardis Does Not Allege Any Unlawful Trimming Occurred In The Area
14 Described By Metes And Bounds In The 1928 Or 1929 CC&Rs ............................12
15 E. Even If The TAC Had Alleged The Alleged Cutting Occurred Within The
Area Described In The 1928 CC&Rs, Such Allegations Should Be
16 Disregarded As A Sham ...........................................................................................12
17 F. Bardis Does Not Competently Allege He Has Standing To Sue Under 1928
Or 1929 CC&Rs .......................................................................................................13
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VI. THERE IS NO ACTUAL CONTROVERSY AND DECLARATORY RELIEF IS
19 UNNECESSARY .................................................................................................................16
20 VII. CONCLUSION.........................................................................................................................17
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 TABLE OF AUTHORITIES
2 Page
3 CASES
4 Cantu v. Resolution Trust Corp.
(1992) 4 Cal.App.4th 857 .................................................................................................... 12
5
Centex Homes v. St. Paul Fire & Marine Ins. Co.
6 (2015) 237 Cal.App.4th 23 .................................................................................................. 16
7 Colyear v. Rolling Hills Community Association Of Rancho Palo Verdes
(2024) 100 Cal.App.5th 110 .................................................................................................. 7
8
County of Fresno v. Shelton
9 (1998) 66 Cal.App.4th 996, 1009 ........................................................................................ 14
10 Fourth La Costa Condo. Owners Assn. v. Seith
(2008) 159 Cal.App.4th 563 .................................................................................................. 6
11
Frances T. v. Village Green Owners Assn.
12 (1986) 42 Cal.3d 490 ............................................................................................................. 6
13 Hansen v. Newegg.com Americas, Inc.
(2018) 25 Cal.App.5th 714 .................................................................................................. 15
14
Hendy v. Losse
15 (1991) 54 Cal.3d 723 ........................................................................................................... 12
16 Otay Land Co. v. Royal Indem. Co.
(2008) 169 Cal.App.4th 556 ................................................................................................ 16
17
Riley v. Bear Creek Plan. Comm.
18 (1976) 17 Cal.3d 500 ......................................................................................................... 8, 9
19 Self v. Sharafi
(2013) 220 Cal.App.4th 483 .................................................................................................. 9
20
Thompson v. Cnty. of Fresno
21 (1963) 59 Cal.2d 686 ........................................................................................................... 12
22 Werner v. Graham
(1919) 181 Cal. 174 ............................................................................................................... 8
23
Zakk v. Diesel
24 (2019) 33 Cal.App.5th 431 .................................................................................................. 10
25
STATUTES
26
Civil Code § 5975 ........................................................................................................................... 11
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Code of Civil Procedure § 367 ........................................................................................................ 13
28 643.0 06055463.000 3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 TABLE OF AUTHORITIES
(Continued)
2 Page
3 Code of Civil Procedure, § 1061 ..................................................................................................... 16
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OTHER AUTHORITIES
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Davis-Sterling Act ........................................................................................................................... 11
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 I.
INTRODUCTION
2
3 Bardis’ third bite at the apple fares no better than his last two. He persists in pursuing claims
4 that, as a matter of law and this Court’s precedent, are not available to him. The Third Amended
5 Complaint (TAC) (which is the fourth he has filed in this action) attempts to bootstrap a claim for
6 breach of the 1959 CC&Rs by arguing there is some unexpressed intent from the grantor to provide
7 Bardis with the right to sue Simonian. But CC&Rs are creatures of contract, and nothing contained
8 in the language of the 1959 CC&Rs provides Bardis the right to sue defendants who are not subject
9 to them. This Court has already twice ruled as much, yet here we are again. The TAC fails because
10 it remains fundamentally premised on Simonian’s breach of CC&Rs which have no application to
11 them. And to the extent the TAC alleges violations of the CC&Rs from 1928 or 1929, it nonetheless
12 fails for both procedural and substantive reasons. Procedurally because the Court’s prior order
13 sustaining Simonian’s demurrers only provided leave as it relates to the CC&Rs from 1959, not a
14 blanket license to plead causes of action from CC&Rs from nearly a century ago. And substantively
15 because even if the TAC did comport with the procedural requirements to properly state a cause of
16 action, the claims still fail because those CC&Rs do not apply here and Bardis has no right to sue
17 under them. For these reasons, and those discussed more fully below, the demurrer should be
18 sustained and no leave to amend provided. Bardis has no viable legal claim arising from the alleged
19 unlawful trimming of trees on property he does not own, he cannot see, and for which he has suffered
20 no injury. This Court should finally end Bardis’ bad faith pursuit of Simonian.
21 II.
RELEVANT FACTUAL BACKGROUND
22
23 This Court is well familiar with the factual proceedings which give rise to the action.
24 Simonian therefore only provides a brief recitation of that which is most pertinent for the Court’s
25 consideration. Bardis filed his lawsuit to assist his nephew, Larry Berte, in Berte’s ongoing litigation
26 against Simonian for the alleged unlawful cutting/trimming of the same trees at issue in that case. In
27 two separate complaints, Bardis has alleged Simonian is liable for breaching CC&Rs from the year
28 1959 despite the fact that those CC&Rs provide that they can only be enforced against the “Grantee”
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 and successors in interest to the Grantee. The Court twice sustained demurrers to Bardis’ prior
2 complaints for the simple reason that the 1959 CC&Rs, by their terms, do not apply to Simonian,
3 especially in light of Bardis’ admissions in this litigation. (Sarabian Decl. ¶ 3, Ex. 1; Request For
4 Judicial Notice ¶ 1 Ex. 1 [Bardis’ Response to RFAs, RFA No. 1: Admit that Simonian is not the
5 successor in interest to the party identified as the grantee in the 1959 CC&Rs.].)
6 Bardis has therefore filed this instant complaint which still alleges that Simonian is liable for
7 breach of the 1959 CC&Rs. To get past the Court’s ruling that Simonian is not liable for breaching
8 them, the TAC references CC&Rs from the years 1928 and 1929, and seemingly avers that when all
9 three CC&Rs are read in totality, Bardis has the right to sue Simonian for the alleged unlawful
10 cutting/trimming of trees. (TAC ¶ 1.) He refers to “correlative rights” within the CC&Rs, even
11 though he admits the 1959 apply only to him, 1928 only to Simonian, and 1929 only to Berte. (TAC
12 ¶ 17.) The TAC make no allegation establishing the origin of these “correlative rights,” and while
13 somewhat ambiguous, it appears the TAC exclusively sues Simonian for breach of the 1959 CC&Rs.
14 (TAC ¶¶ 37, 39.) For reasons already decided by this Court, the claim fails. And to the extent Bardis
15 sues for breach of CC&Rs from 1928 or 1929, those too fail, for both similar and different reasons.
16 III.
THE 1959 CC&RS ARE NOT ENFORCEABLE AGAINST SIMONIAN
17
18 “The same rules that apply to interpretation of contracts apply to the interpretation of CC&R's.
19 A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed
20 at the time of contracting, so far as the same is ascertainable and lawful. Where the language of a
21 contract is clear and not absurd, it will be followed.” (Fourth La Costa Condo. Owners Assn. v. Seith
22 (2008) 159 Cal.App.4th 563, 575.) In Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d
23 490, 512-513 the California Supreme Court affirmed the sustaining of a demurrer to the plaintiff’s
24 complaint against her homeowner’s association for breach of the CC&Rs arising from the
25 association’s alleged failure to install security lights. In rejecting the claim, the Court held CC&Rs
26 are creatures of contracts, and “the rights and responsibilities of contracting parties are determined
27 by the terms of their contract.” (Id. at 512.) Because the plaintiff failed to cite to any provision of
28 the CC&Rs which would constitute a breach of the contract, there could be no claim; “Plaintiff's
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 allegation that defendants breached that contract by failing to install additional lighting must fail
2 because she does not allege that any provision in any of the writings imposed such an obligation on
3 defendant.”
4 Here, the 1959 CC&Rs identify who can be sued for breach of them:
5
6
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8 Simonian is neither the Grantee nor a successor in interest to the Grantee, as even Bardis admits.
9 (Request For Judicial Notice ¶ 1, Ex. 1.) Therefore, as this Court has already ruled, by the
10 unambiguous terms of the 1959 CC&Rs, there is no claim against Simonian for breach of them.
11 To the extent Bardis intends to rely on an incorporation by reference argument, that too fails.
12 In Colyear v. Rolling Hills Community Association Of Rancho Palo Verdes (2024) 100 Cal.App.5th
13 110 the Court of Appeal found for a homeowner seeking a declaration that certain CC&Rs did not
14 apply to his property. The defendant argued that CC&Rs bound the plaintiff because they were
15 similar to the ones recorded against the plaintiff’s property, and the CC&Rs that were recorded
16 against the plaintiff’s property made reference to the CC&Rs at issue. In finding the non-recorded
17 CC&Rs did not apply, the Court first recognized that by operation of the recording statutes, the
18 disputed CC&Rs did not apply because they were never recorded against it. (Id.) It then dispensed
19 with the defendant’s argument that the non-recorded CC&Rs should still apply because they were
20 incorporated by reference. In rejecting the argument, the Court was guided by contract principles
21 and the requirement that for a contract to be incorporated by reference the reference must be “clear
22 and unequivocal.” (Ibid.) The CC&R at issue in Colyear, however, contained no “clear and
23 unequivocal” incorporation and therefore did not apply. (Id.) Indeed, the Colyear court found the
24 CC&Rs at issue did not apply despite the fact that the CC&Rs which were recorded made reference
25 to the disputed CC&Rs.
26 There is no legal theory by which Simonian can be liable for breach of the 1959 CC&Rs
27 because they self-evidently do not apply and nowhere attempt to incorporate by reference CC&Rs
28 that may apply; i.e. from 1928. Indeed, the CC&Rs in Colyear at least referenced the CC&Rs at
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 issue, and that was still insufficient as a matter of law. Here, the 1959 CC&Rs do not even identify
2 or attempt to incorporate any other CC&Rs by reference. Therefore, the claim fails.
3 IV.
THE RECORDING LAWS ALSO INDEPENDENTLY COMPEL THE FINDING THAT
4 THE 1959 CC&RS DO NOT APPLY TO SIMONIAN
5 The claim for breach of the 1959 CC&Rs fails for not only reasons of contract, but also
6 because the recording laws protect Simonian from this exact type of harassment. In Citizens for
7 Covenant Compliance v. Anderson (1995) 12 Cal.4th 345 the California Supreme Court held that
8 CC&Rs could be enforced against real property even if not specifically referenced in a deed of sale
9 so long as it was recorded against the property: “if the restrictions are recorded before the sale, the
10 later purchaser is deemed to agree to them. The purchase of property knowing of the restrictions
11 evinces the buyer's intent to accept their burdens and benefits. Thus, the mutual servitudes are created
12 at the time of the conveyance even if there is no additional reference to them in the deed.” (Id. at 363
13 (emphasis added).) Citizens held that as a matter of fundamental fairness, for CC&Rs to be
14 enforceable not only is notice of them required, but so too is evidence of the buyer’s “intent to accept
15 the burdens and benefits.” (Id. at 363.) In other words, CC&Rs are only enforceable if they are part
16 of the deed or recorded prior to the purchase of the property so that the buyer has notice of them and
17 thereby intends to accept them as part of the purchase.
18 In Werner v. Graham (1919) 181 Cal. 174 disapproved of on other grounds by Citizens for
19 Covenant Compliance v. Anderson (1995) 12 Cal.4th 345 the California Supreme Court held certain
20 land use restrictions did not apply to the subject property. While the deeds at issue in Werner were
21 each independently sold with certain restrictions, there was no specific reference to a common plan
22 such that landowners of other parcels could sue to enforce their application. Its holding was premised
23 upon the fact that “there is no language in the instruments between the parties—that is, the deeds—
24 which refers to a common plan of restrictions, or which expresses or in any way indicates any
25 agreement between grantor and grantee that the lot conveyed is taken subject to any such plan.” (Id.
26 at 185.)
27 Similarly, in Riley v. Bear Creek Plan. Comm. (1976) 17 Cal.3d 500, disapproved of on other
28 grounds by Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, the California
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 Supreme Court found that CC&Rs recorded against certain real property after the owner’s acquisition
2 of the parcel were unenforceable. The Court’s holding was supported by the policy that landowners
3 ought to know what covenants, codes, and restrictions may apply to their property prior to the
4 purchase of it:
5 The grantee of property subject to mutually enforceable restrictions takes not
just a servient tenement but, as owner of a dominant tenement, acquires a
6 property interest in all other lots similarly burdened for the benefit of his
property. That fact significantly affects the expectations of the parties and
7 inevitably enters into the exchange of consideration between grantor and
grantee. … Thus, the recording statutes operate to protect the expectations of
8 the grantee and secure to him the full benefit of the exchange for which he
bargained.
9
Where, however, mutually enforceable equitable servitudes are sought to be
10 created outside the recording statutes, the vindication of the expectations of the
original grantee, and for that matter succeeding grantees, is hostage not only to
11 the good faith of the grantor, but, even assuming good faith, to the vagaries of
proof by extrinsic evidence of actual notice on the part of grantees who
12 thereafter take a part of the servient tenement either from the common grantor
or as successors in interest to his grantees.
13
The uncertainty thus introduced into subdivision development would in many
14 cases circumvent any plan for the orderly and harmonious development of such
properties and result in a crazy-quilt pattern of uses frustrating the bargained-for
15 expectations of lot owners in the tract.
16 (Riley v. Bear Creek Plan. Comm (1976) 17 Cal.3d 500, 511–12.)
17 It is for these reasons that “to run with the land, a covenant must touch and concern land,
18 which means it must affect the parties as owners of the particular estates in land or relate to the use
19 of land. The primary characteristic of a covenant running with the land is that both liability upon it
20 and enforceability of it pass with the transfer of the estate. The benefits or burdens pass by
21 implication of law rather than under principles of contract.” (Self v. Sharafi (2013) 220 Cal.App.4th
22 483, 488 (emphasis added).)
23 Here, the TAC admits the 1959 CC&Rs are only recorded against Bardis’ property, 1929 only
24 Berte’s, and 1928 only against Simonian. (TAC ¶ 17, 25.) Bardis nonetheless contends he can sue
25 Simonian for breach of the 1959 CC&Rs because, according to Bardis, “the 1959 CC&Rs impose
26 their obligations on the Simonians as a landowner living within ½ mile of Bardis.” (TAC ¶ 25.) But
27 to be enforceable against Simonian, the CC&Rs must either be recorded against his property, or the
28 CC&Rs must be clearly incorporated by reference. Here, Bardis admits that 1959 are not recorded
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 against Simonian’s property and on its face those CC&Rs do not attempt to incorporate by reference
2 CC&Rs that may apply to Simonian. Therefore, the demurrer should be sustained on this independent
3 basis because the recording statutes legally forbid enforcement of the 1959 CC&Rs against Simonian.
4 V.
CLAIMS FOR BREACH OF THE CC&RS FROM 1928 AND 1929 FAIL FOR
5 NUMEROUS INDEPENDENT REASONS
6 The TAC appears to be premised upon Simonian’s breach of the 1959 CC&Rs and Bardis
7 brings his claim thereon. (See, ¶¶ 24, 25, 26, 37, 39.) To the extent Bardis is also alleging breach
8 of the CC&Rs from the years 1928 or 1929, he has failed to separately label them as separate
9 causes of action as required by California Rule of Court 2.112. And, fundamentally, claims for
10 breach of the CC&Rs from 1928 and 1929 still fail for the reasons discussed below.
11 A. The Court Did Not Provide Bardis Leave To Sue For Breach Of The CC&Rs From
1928 or 1929
12
13 The TAC exceeds the grant of leave to amend and should be rejected on that ground.
14 “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to
15 amend, the plaintiff may amend his or her complaint only as authorized by the court's order.”
16 Zakk v. Diesel (2019) 33 Cal.App.5th 431. In Zakk, the Court of Appeal affirmed a demurrer to a
17 cause of action for promissory estoppel was properly sustained on the ground that the prior
18 complaint included no such cause of action and leave to amend was only provided to add a cause
19 of action for quantum meruit. The Court’s holding was guided by practical policy considerations:
20 “The granting of leave to amend after a demurrer is sustained on one ground does not give the
21 plaintiff a license to add any possible cause of action that might not be subject to dismissal on that
22 ground. Otherwise, there would be virtually no limitation on amendments following the sustaining
23 of a demurrer.” (Id. at 456.)
24 Here, the Court was explicit at oral argument on the demurrer that leave to amend was only
25 being provided to allow Bardis to allege facts showing the CC&Rs from 1959 somehow apply to
26 Simonian. Bardis was not provided carte blanche to allege whatever he wanted, and the Court
27 never permitted Bardis to sue for stale claims already engaged in the Berte Litigation. For this
28 reason alone, to the extent a claim for breach of the CC&Rs from 1928 or 1929 is being made,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 they fail, and the demurrer should be sustained on this basis.
2 B. Davis-Sterling Has No Application And Is Also Outside The Scope Of Leave
3 For the first time, Bardis alleges in the TAC that even if he cannot enforce the CC&Rs
4 pursuant to their own terms, or through incorporation by reference, he can nonetheless sue pursuant
5 to the Davis-Sterling Act and Civil Code § 5975. This argument fails for three independent reasons:
6 First, Bardis’ leave to amend does not extend to include claims for breach of the Davis-
7 Sterling Act. Therefore, it should be dismissed on this basis.
8 Second, and to the extent Bardis is arguing Davis-Sterling provides him with a viable claim
9 for breach of the 1959 CC&Rs against Simonian, such argument fundamentally misapprehends the
10 way in which CC&Rs operate. Civil Code § 5975 provides that “The covenants and restrictions in
11 the declaration shall be enforceable equitable servitudes… [and] these servitudes may be enforced
12 by any owner of a separate interest or by the association, or by both.” This Code provision simply
13 expands the pool of persons who may be eligible to sue for violation of CC&Rs that are properly
14 recorded and when the defendant is subject to them. Under the 1959 CC&Rs, Simonian is neither
15 the Grantee nor a successor in interest to the Grantee, and they are not recorded against its property
16 nor incorporated by reference. Therefore, they have no application, and neither does Civil Code §
17 5975. The Code provision doesn’t rewrite all of California law and make persons otherwise not
18 bound by CC&Rs subject to them even if they are not recorded against the property or self-evidently
19 applicable pursuant to their own terms.
20 Third, the Code provision explicitly states: “unless the declaration states otherwise these
21 servitudes may be enforced by any owner of a separate interest or by the association, or by both.”
22 (emphasis added.) Here, each of the CC&Rs specifically provide who can sue and limit their
23 enforcement; 1959 people within a half-mile, and 1928 and 1929 only “parties aggrieved.” They are
24 therefore outside the ambit of Civil Code § 5975 which only applies if the declaration does not provide
25 who can sue, then anybody can. Functionally, if there is no “who” in the CC&Rs, then Civil Code
26 § 5975 says “everyone.” Here, each of the CC&Rs provide a “who” as to the capacity to sue.
27 ///
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 C. Bardis Admits 1929 Are Not Recorded Against Simonian’s Property And Therefore
The Recording Statutes Protect Simonian
2
3 As discussed infra, the recording statutes operate to protect homeowners and provide notice
4 of the rules and restrictions for their property. (Citizens, supra, 12 Cal.4th 345.) The TAC admits
5 the 1929 CC&Rs are only recorded against Berte’s property and therefore Simonian cannot be liable
6 under them. (TAC ¶ ¶ 17, 25.) Therefore, a claim for breach of them against Simonian fails for this
7 independent reason.
8 D. Bardis Does Not Allege Any Unlawful Trimming Occurred In The Area Described By
Metes And Bounds In The 1928 Or 1929 CC&Rs
9
10 In order to competently allege a breach of the 1928 or 1929 CC&Rs, Bardis must identify the
11 property which it contemplates, then allege that trees were cut in that area. Indeed, the sixth condition
12 in the 1928 CC&Rs explicitly provides: “no trees of any kind or character located upon the premise
13 herein described shall be cut or removed therefrom without the consent in writing of the Grantor.”
14 (TAC, Ex. B; 1928 CC&Rs [SIXTH clause].) The TAC fails to allege facts establishing where the
15 “premises herein described” are located and that the trees at issue were “cut or removed” on said
16 premises. Therefore, the claim fails because it fails to allege the threshold necessary fact to establish
17 a breach of the 1928 or 1929 CC&Rs by its own terms.
18 E. Even If The TAC Had Alleged The Alleged Cutting Occurred Within The Area
Described In The 1928 CC&Rs, Such Allegations Should Be Disregarded As A Sham
19
20 Pleadings that contain “inconsistent factual allegations” without explanation must be
21 scrutinized and rejected. (Thompson v. Cnty. of Fresno (1963) 59 Cal.2d 686, 690; Hendy v. Losse
22 (1991) 54 Cal.3d 723, 743 [affirming demurrer, without leave to amend, when amended complaint
23 omitted harmful allegations from original complaint].) As stated in Cantu v. Resolution Trust Corp.
24 (1992) 4 Cal.App.4th 857, 877:
25 [P]laintiff may not plead facts that contradict the facts or positions that the plaintiff
pleaded in earlier actions or suppress facts that prove the pleaded facts false. The
26 principle is that of truthful pleading... Under such circumstances, the court will
disregard the falsely pleaded facts and affirm the demurrer. [citations omitted;
27
emphasis in original]
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 The TAC acknowledges the obvious: Bardis is suing Simonian for the exact same trees at
2 issue which Simonian being sued for by Bardis’ nephew Berte so that Berte can have additional
3 leverage in his ongoing civil litigation against Simonians. (TAC ¶ 43.) Indeed, the TAC alleges:
4 “Defendants wrongfully trimmed approximately 50 Monterey Pine trees, of which approximately 20
5 have died and 8 are dying.” (TAC ¶ 48.) This allegation is almost 100% identical to what Berte
6 alleges in his Second Amended Complaint: “Plaintiffs allege that Defendants unlawfully trimmed
7 approximately 50 of their Monterey Pine trees, of which numerous trees, 20 have already died and 8
8 are dying.” (Sarabian Decl. ¶ 4, Ex. 2; Request For Judicial Notice ¶ 2, Ex. 2 [Berte SAC ¶ 48]
9 (emphasis added).) Note the slight distinction between the two allegations, with the TAC removing
10 the word “their.” This was done intentionally. Even though the TAC is wholly derived from the
11 same set of operative facts as is the Berte Litigation 1, (with its counsel at the hearing on the demurrer
12 to the First Amended Complaint admitting they are indeed the same trees at issue) the TAC removes
13 the allegation that the trees were on the Berte Property exclusively because this Court granted
14 Simonian’s Motion for Summary Adjudication in the Berte Litigation on this exact issue:
15 “Defendants accordingly have met their burden to show there is no triable issue of fact as to the 9th
16 cause of action premised upon Defendants cutting trees on their own property, and Plaintiffs have not
17 met their burden to show that a triable issue of fact exists based upon the presently operative
18 pleadings.” (Sarabian Decl. ¶ 5, Ex. 3; Request For Judicial Notice ¶ 3, Ex. 3.) Therefore, any attempt
19 to argue trees were trimmed on Simonian’s property should be disregarded as a sham pleading as
20 Bardis is clearly attempting to breathe life in an otherwise defective complaint that failed in the Berte
21 Litigation.
22 F. Bardis Does Not Competently Allege He Has Standing To Sue Under 1928 Or 1929
CC&Rs
23
24 Every action must be prosecuted in the name of the real party in interest. CCP § 367. If a
25 plaintiff’s lack of standing to sue appears on the face of the complaint or from matters judicially
26 noticeable, a general demurrer lies for failure to state a cause of action in this plaintiff. (County of
27
1
28 The photos appended to the TAC as Ex. 4 are from the Berte Action.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009.)
2 The 1928 and 1929 CC&Rs only provide standing to the “parties aggrieved.” Bardis makes
3 no effort – quite literally, none – to allege sufficient facts showing he is a “party aggrieved” and thus
4 has standing. Instead, the TAC alleges in conclusory fashion that “under this unambiguous language
5 of the Eleventh Restriction, Bardis is a party ‘aggrieved’ and may enforce the CC&Rs against the
6 Simonians.” (TAC ¶ 60.) The absence of competent facts attempting to establish that Bardis is a
7 party “aggrieved” is not a bug of Bardis’ action, but rather a feature of it. Consider that on two
8 separate occasions Bardis has sued Simonian exclusively for breach of the 1959 CC&Rs (which is
9 likely the case in the TAC, but it is hard to determine because of how it is pled). Bardis never sued
10 for Simonian alleged breach of the 1928 or 1929 CC&Rs. Why? He cannot say it is because he was
11 unaware of these CC&Rs existence inasmuch as Berte amended his complaint in June to sue for
12 violation of both 1928 and 1929’s CC&Rs for the exact same trees.
13 Rather, Bardis sued only pursuant to 1959 instead of 1928 or 1929 because Bardis cannot
14 establish standing to sue under 1928 or 1929. Under the CCC&Rs from 1959, persons who can sue
15 for breach of them include those within a half mile of the property identified within it. (1959 CC&Rs
16 Enforcement (c).) There is no requirement that a party establish they have been aggrieved; standing
17 to sue is exclusively determined by geographical bounds. Contrast the standing provision in the 1959
18 CC&Rs to the one contained in 1928 and 1929, both of which require alleging facts showing the party
19 has been “aggrieved.” Bardis’ choice to twice sue for breach of CC&Rs from 1959 should be read
20 for what it is: a recognition that he lacks a sufficient injury to sue for CC&Rs from 1928 or 1929 and
21 now only attempts to do so to salvage his fatally defective complaint.
22 To achieve standing under the 1928 CC&Rs, Bardis must allege he is a party aggrieved for
23 the tree trimming that occurred on “said premises,”; i.e. only the trees subject to the 1928 CC&Rs,
24 not from all trees that were allegedly trimmed. The TAC, however, never alleges how many (if any)
25 trees were allegedly cut or trimmed on the property identified in the 1928 CC&Rs. Indeed, there
26 were likely zero such trees given that Berte failed to allege any unlawful trimming on Simonian’s
27 property. Therefore, the TAC would need to allege sufficient facts showing Bardis suffered an actual
28 injury from the trimming or cutting of trees exclusively on the property described in the 1928 CC&Rs.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 Even if the Court were to consider the number of trees trimmed to be 50 as Bardis alleges
2 (TAC ¶ 48) (even though it is surely less given that many/all of the trees were allegedly cut on Berte’s
3 property), this would still be insufficient show Bardis is aggrieved. Could a frequent visitor to the
4 Pebble Beach area sue for violation of the CC&Rs because they enjoy the aesthetic of the community?
5 Could someone located in the adjacent city of Carmel sue because they frequently drive through the
6 Pebble Beach area? How has Bardis suffered a particular injury from the alleged trimming or cutting
7 of – at the very most – fifty trees on property he does not own when located inside a forest containing
8 hundreds of thousands of trees 2? Has he alleged an economic injury? Can he contend he’s suffered
9 a diminution in property value proximately caused by the cutting of fifty trees on a neighbor’s
10 property? Does he maintain a property interest in the trees cut? Has the view from his property
11 changed? Is Simonian, or any other member of the Pebble Beach community, subject to infinite
12 lawsuits from each and every resident if there is a single tree cut without permission because it
13 potentially injures the forest’s ecosystem? Bardis has simply suffered no actual injury, admitting in
14 his complaint that he brings it to “protect the natural beauty of the Del Monter Forest, Pebble Beach,
15 [and] Monterey County.” (TAC ¶ 3.) Pebble Beach is in need of no such public guardian and the
16 law is not so elastic so as to afford any persons who enjoy the natural beauty of “Del Monte Forest,
17 Pebble Beach, and Monterey County” the right to sue for a breach of CC&Rs.
18 Consider as well that in this litigation Bardis twice sued Simonian for unlawful business
19 practices. In both demurrers, Simonian successfully argued Bardis lacked standing to sue for a
20 violation of the UCL because to bring a UCL claim the plaintiff must demonstrate: “(1) a loss or
21 deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2)
22 show that that economic injury was the result of, i.e., caused by, the unfair business practice or false
23 advertising that is the gravamen of the claim.” (Hansen v. Newegg.com Americas, Inc. (2018) 25
24 Cal.App.5th 714, 723-724.) This Court twice sustained demurrers on the ground that Bardis did not
25
26 2
The Del Monte Forrest is 10.6 square miles and heavily saturated with trees throughout.
https://en.wikipedia.org/wiki/Del_Monte_Forest,_California. Pouring a cup of chlorine in the
27
ocean does not give beachgoers standing to sue for an injury and neither does Bardis have
28 standing to sue for the alleged unlawful trimming of a handful of trees in a ten square mile forest.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 competently allege an injury in fact. The standard should be no different when determining whether
2 a plaintiff qualifies as a “party aggrieved,” under the CC&Rs. Bardis has had three chances to allege
3 an actual, palpable injury. He has failed to do so, and the demurrer should be sustained on this basis.
4 VI.
THERE IS NO ACTUAL CONTROVERSY AND DECLARATORY RELIEF IS
5 UNNECESSARY
6 “To assert a cause of action for declaratory relief, Code of Civil Procedure section 1060
7 requires that there be an actual controversy relating to the legal rights and duties of the respective
8 parties, not an abstract or academic dispute.” (Centex Homes v. St. Paul Fire & Marine Ins. Co.
9 (2015) 237 Cal.App.4th 23, 29.) “The fundamental basis of declaratory relief is the existence of an
10 actual, present controversy over a proper subject. Courts require that a legally cognizable theory of
11 declaratory relief is being pursued, in order for such a cause of action to be stated. A matter is not
12 justiciable or appropriate for resolution through declaratory relief unless the proper criteria are
13 present. One cannot analyze requested declaratory relief without evaluating the nature of the rights
14 and duties that plaintiff is asserting, which must follow some recognized or cognizable legal theories,
15 that are related to subjects and requests for relief that are properly before the court.” (Otay Land Co.
16 v. Royal Indem. Co. (2008) 169 Cal.App.4th 556, 562.) Cal. Civ. Proc. § 1061 “The court may refuse
17 to exercise the power granted by this chapter in any case where its declaration or determination is not
18 necessary or proper at the time under all the circumstances.”
19 Here, Bardis identifies the “controversy” needing adjudication as whether “Bardis and other
20 owners in the area have the right to sue for violations of the CC&Rs imposed on the Simonians in the
21 Simonians’ deed, and whether the Simonians are proper party defendants bound by those CC&Rs
22 and answerable to Bardis.” (TAC ¶ 71.) This vague statement does not constitute an actual
23 controversy between the parties appropriate for declaratory relief for multiple reasons. First, if the
24 demurrer is sustained, then Bardis will have his declaration that Simonian is not obligated to answer
25 to him on the CC&Rs. Second, this is the exact kind of “academic dispute” that courts avoid; Bardis
26 has not suffered an actual injury but instead asks the Court to advise him of his claimed rights despite
27 suffering no loss. Third, the declaration is vague and ambiguous and therefore not properly before
28 the Court. Is Bardis asking whether he could, under any conceivable circumstance, sue Simonian for
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 breach of CC&Rs that apply to Bardis, to Simonian, or to Berte? Does he seek a declaration regarding
2 the CC&Rs provision relating to cutting/trimming of trees, or something different? The TAC does
3 not identify which specific provision of which specific CC&R Bardis wants a declaration regarding
4 his capacity to sue Simonian. The declaratory relief cause of action is redundant of and derivative to
5 the primary cause of action, not properly the subject of a declaratory relief claim, and seeks
6 adjudication of an “academic dispute,” for which Bardis has suffered no injury. The demurrer to this
7 cause of action should be sustained (again) without leave.
8 VII.
CONCLUSION
9
10 This litigation is offensive and it needs to end. Bardis has no claims versus Simonian because
11 he sues on CC&Rs that do not apply. And to the extent he’s alleging a violation of the only set of
12 CC&Rs that do apply, he has failed to include competent allegations establishing the elements of the
13 claim, has no right to sue on them, and has suffered no cognizable injury. This meritless matter must
14 finally be dismissed, with prejudice.
15 Dated: April 15, 2024 WHITNEY, THOMPSON & JEFFCOACH LLP
16
17
By:
18 Marshall C. Whitney
Jacob S. Sarabian
19 Attorneys for PETER T. SIMONIAN and PATRICIA L.
SIMONIAN
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
1 PROOF OF SERVICE
2 Christo Bardis v. County of Monterey, et al.
Case No. 22CV001790
3
STATE OF CALIFORNIA, COUNTY OF FRESNO
4
At the time of service, I was over 18 years of age and not a party to this action. I am
5 employed in the County of Fresno, State of California. My business address is 970 W. Alluvial
Ave., Fresno, CA 93711.
6
On April 15, 2024, I served true copies of the following document(s) described as
7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS
PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S
8 THIRD AMENDED COMPLAINT on the interested parties in this action as follows:
9 Mark E. Ellis Attorneys for Plaintiff Christo Bardis
Ellis Law Group, LLP
10 1425 River Park Drive, Suite 400
Sacramento, CA 95815
11 Email: mellis@ellislawgrp.com
restrella@ellislawgrp.com
12 jmueller@ellislawgrp.com
jhyde@ellislawgrp.com
13
14 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and
15 mailing, following our ordinary business practices. I am readily familiar with the practice of
Whitney, Thompson & Jeffcoach LLP for collecting and processing correspondence for mailing.
16 On the same day that correspondence is placed for collection and mailing, it is deposited in the
ordinary course of business with the United States Postal Service, in a sealed envelope with
17 postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The
envelope was placed in the mail at Fresno, California.
18
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
19 document(s) to be sent from e-mail address jbennett@wtjlaw.com to the persons at the e-mail
addresses listed in the Service List. I did not receive, within a reasonable time after the
20 transmission, any electronic message or other indication that the transmission was unsuccessful.
21 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
22
Executed on April 15, 2024, at Fresno, California.
23
24
25
Jacquelyn Bennett
26
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN
AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT
Preview
1 Whitney, Thompson & Jeffcoach LLP Marshall C. Whitney, #82952 2 mwhitney@wtjlaw.com Jacob S. Sarabian, #322108 3 jsarabian@wtjlaw.com 970 W. Alluvial Ave. 4 Fresno, California 93711 Telephone: (559) 753-2550 5 Facsimile: (559) 753-2560 6 Attorneys for PETER T. SIMONIAN and PATRICIA L. SIMONIAN 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF MONTEREY 10 11 CHRISTO BARDIS, Case No. 22CV001790 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 13 v. DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ 14 COUNTY OF MONTEREY; PETER T. DEMURRER TO PLAINTIFF’S THIRD SIMONIAN and PATRICIA L. SIMONIAN, AMENDED COMPLAINT 15 individually and as trustees of the SIMONIAN TRUST DATED DECEMBER 31, 2014; and [Filed concurrently with Notice of 16 DOES 1-10 inclusive, Demurrer and Demurrer, Request for Judicial Notice, and Declaration of Jacob S. 17 Defendants. Sarabian] 18 Date: July 5, 2024 19 Time: 8:30 a.m. Dept.: 15 20 Action Filed: December 8, 2022 21 22 23 24 25 26 27 28 643.0 06055463.000 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION ..........................................................................................................................5 4 II. RELEVANT FACTUAL BACKGROUND .................................................................................5 5 III. THE 1959 CC&RS ARE NOT ENFORCEABLE AGAINST SIMONIAN ...............................6 6 IV. THE RECORDING LAWS ALSO INDEPENDENTLY COMPEL THE FINDING THAT THE 1959 CC&RS DO NOT APPLY TO SIMONIAN ............................................8 7 V. CLAIMS FOR BREACH OF THE CC&RS FROM 1928 AND 1929 FAIL FOR 8 NUMEROUS INDEPENDENT REASONS .......................................................................10 9 A. The Court Did Not Provide Bardis Leave To Sue For Breach Of The CC&Rs From 1928 or 1929 .....................................................................................10 10 B. Davis-Sterling Has No Application And Is Also Outside The Scope Of 11 Leave ........................................................................................................................11 12 C. Bardis Admits 1929 Are Not Recorded Against Simonian’s Property And Therefore The Recording Statutes Protect Simonian ...............................................12 13 D. Bardis Does Not Allege Any Unlawful Trimming Occurred In The Area 14 Described By Metes And Bounds In The 1928 Or 1929 CC&Rs ............................12 15 E. Even If The TAC Had Alleged The Alleged Cutting Occurred Within The Area Described In The 1928 CC&Rs, Such Allegations Should Be 16 Disregarded As A Sham ...........................................................................................12 17 F. Bardis Does Not Competently Allege He Has Standing To Sue Under 1928 Or 1929 CC&Rs .......................................................................................................13 18 VI. THERE IS NO ACTUAL CONTROVERSY AND DECLARATORY RELIEF IS 19 UNNECESSARY .................................................................................................................16 20 VII. CONCLUSION.........................................................................................................................17 21 22 23 24 25 26 27 28 643.0 06055463.000 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857 .................................................................................................... 12 5 Centex Homes v. St. Paul Fire & Marine Ins. Co. 6 (2015) 237 Cal.App.4th 23 .................................................................................................. 16 7 Colyear v. Rolling Hills Community Association Of Rancho Palo Verdes (2024) 100 Cal.App.5th 110 .................................................................................................. 7 8 County of Fresno v. Shelton 9 (1998) 66 Cal.App.4th 996, 1009 ........................................................................................ 14 10 Fourth La Costa Condo. Owners Assn. v. Seith (2008) 159 Cal.App.4th 563 .................................................................................................. 6 11 Frances T. v. Village Green Owners Assn. 12 (1986) 42 Cal.3d 490 ............................................................................................................. 6 13 Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714 .................................................................................................. 15 14 Hendy v. Losse 15 (1991) 54 Cal.3d 723 ........................................................................................................... 12 16 Otay Land Co. v. Royal Indem. Co. (2008) 169 Cal.App.4th 556 ................................................................................................ 16 17 Riley v. Bear Creek Plan. Comm. 18 (1976) 17 Cal.3d 500 ......................................................................................................... 8, 9 19 Self v. Sharafi (2013) 220 Cal.App.4th 483 .................................................................................................. 9 20 Thompson v. Cnty. of Fresno 21 (1963) 59 Cal.2d 686 ........................................................................................................... 12 22 Werner v. Graham (1919) 181 Cal. 174 ............................................................................................................... 8 23 Zakk v. Diesel 24 (2019) 33 Cal.App.5th 431 .................................................................................................. 10 25 STATUTES 26 Civil Code § 5975 ........................................................................................................................... 11 27 Code of Civil Procedure § 367 ........................................................................................................ 13 28 643.0 06055463.000 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 TABLE OF AUTHORITIES (Continued) 2 Page 3 Code of Civil Procedure, § 1061 ..................................................................................................... 16 4 OTHER AUTHORITIES 5 Davis-Sterling Act ........................................................................................................................... 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 643.0 06055463.000 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 I. INTRODUCTION 2 3 Bardis’ third bite at the apple fares no better than his last two. He persists in pursuing claims 4 that, as a matter of law and this Court’s precedent, are not available to him. The Third Amended 5 Complaint (TAC) (which is the fourth he has filed in this action) attempts to bootstrap a claim for 6 breach of the 1959 CC&Rs by arguing there is some unexpressed intent from the grantor to provide 7 Bardis with the right to sue Simonian. But CC&Rs are creatures of contract, and nothing contained 8 in the language of the 1959 CC&Rs provides Bardis the right to sue defendants who are not subject 9 to them. This Court has already twice ruled as much, yet here we are again. The TAC fails because 10 it remains fundamentally premised on Simonian’s breach of CC&Rs which have no application to 11 them. And to the extent the TAC alleges violations of the CC&Rs from 1928 or 1929, it nonetheless 12 fails for both procedural and substantive reasons. Procedurally because the Court’s prior order 13 sustaining Simonian’s demurrers only provided leave as it relates to the CC&Rs from 1959, not a 14 blanket license to plead causes of action from CC&Rs from nearly a century ago. And substantively 15 because even if the TAC did comport with the procedural requirements to properly state a cause of 16 action, the claims still fail because those CC&Rs do not apply here and Bardis has no right to sue 17 under them. For these reasons, and those discussed more fully below, the demurrer should be 18 sustained and no leave to amend provided. Bardis has no viable legal claim arising from the alleged 19 unlawful trimming of trees on property he does not own, he cannot see, and for which he has suffered 20 no injury. This Court should finally end Bardis’ bad faith pursuit of Simonian. 21 II. RELEVANT FACTUAL BACKGROUND 22 23 This Court is well familiar with the factual proceedings which give rise to the action. 24 Simonian therefore only provides a brief recitation of that which is most pertinent for the Court’s 25 consideration. Bardis filed his lawsuit to assist his nephew, Larry Berte, in Berte’s ongoing litigation 26 against Simonian for the alleged unlawful cutting/trimming of the same trees at issue in that case. In 27 two separate complaints, Bardis has alleged Simonian is liable for breaching CC&Rs from the year 28 1959 despite the fact that those CC&Rs provide that they can only be enforced against the “Grantee” 643.0 06055463.000 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 and successors in interest to the Grantee. The Court twice sustained demurrers to Bardis’ prior 2 complaints for the simple reason that the 1959 CC&Rs, by their terms, do not apply to Simonian, 3 especially in light of Bardis’ admissions in this litigation. (Sarabian Decl. ¶ 3, Ex. 1; Request For 4 Judicial Notice ¶ 1 Ex. 1 [Bardis’ Response to RFAs, RFA No. 1: Admit that Simonian is not the 5 successor in interest to the party identified as the grantee in the 1959 CC&Rs.].) 6 Bardis has therefore filed this instant complaint which still alleges that Simonian is liable for 7 breach of the 1959 CC&Rs. To get past the Court’s ruling that Simonian is not liable for breaching 8 them, the TAC references CC&Rs from the years 1928 and 1929, and seemingly avers that when all 9 three CC&Rs are read in totality, Bardis has the right to sue Simonian for the alleged unlawful 10 cutting/trimming of trees. (TAC ¶ 1.) He refers to “correlative rights” within the CC&Rs, even 11 though he admits the 1959 apply only to him, 1928 only to Simonian, and 1929 only to Berte. (TAC 12 ¶ 17.) The TAC make no allegation establishing the origin of these “correlative rights,” and while 13 somewhat ambiguous, it appears the TAC exclusively sues Simonian for breach of the 1959 CC&Rs. 14 (TAC ¶¶ 37, 39.) For reasons already decided by this Court, the claim fails. And to the extent Bardis 15 sues for breach of CC&Rs from 1928 or 1929, those too fail, for both similar and different reasons. 16 III. THE 1959 CC&RS ARE NOT ENFORCEABLE AGAINST SIMONIAN 17 18 “The same rules that apply to interpretation of contracts apply to the interpretation of CC&R's. 19 A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed 20 at the time of contracting, so far as the same is ascertainable and lawful. Where the language of a 21 contract is clear and not absurd, it will be followed.” (Fourth La Costa Condo. Owners Assn. v. Seith 22 (2008) 159 Cal.App.4th 563, 575.) In Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 23 490, 512-513 the California Supreme Court affirmed the sustaining of a demurrer to the plaintiff’s 24 complaint against her homeowner’s association for breach of the CC&Rs arising from the 25 association’s alleged failure to install security lights. In rejecting the claim, the Court held CC&Rs 26 are creatures of contracts, and “the rights and responsibilities of contracting parties are determined 27 by the terms of their contract.” (Id. at 512.) Because the plaintiff failed to cite to any provision of 28 the CC&Rs which would constitute a breach of the contract, there could be no claim; “Plaintiff's 643.0 06055463.000 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 allegation that defendants breached that contract by failing to install additional lighting must fail 2 because she does not allege that any provision in any of the writings imposed such an obligation on 3 defendant.” 4 Here, the 1959 CC&Rs identify who can be sued for breach of them: 5 6 7 8 Simonian is neither the Grantee nor a successor in interest to the Grantee, as even Bardis admits. 9 (Request For Judicial Notice ¶ 1, Ex. 1.) Therefore, as this Court has already ruled, by the 10 unambiguous terms of the 1959 CC&Rs, there is no claim against Simonian for breach of them. 11 To the extent Bardis intends to rely on an incorporation by reference argument, that too fails. 12 In Colyear v. Rolling Hills Community Association Of Rancho Palo Verdes (2024) 100 Cal.App.5th 13 110 the Court of Appeal found for a homeowner seeking a declaration that certain CC&Rs did not 14 apply to his property. The defendant argued that CC&Rs bound the plaintiff because they were 15 similar to the ones recorded against the plaintiff’s property, and the CC&Rs that were recorded 16 against the plaintiff’s property made reference to the CC&Rs at issue. In finding the non-recorded 17 CC&Rs did not apply, the Court first recognized that by operation of the recording statutes, the 18 disputed CC&Rs did not apply because they were never recorded against it. (Id.) It then dispensed 19 with the defendant’s argument that the non-recorded CC&Rs should still apply because they were 20 incorporated by reference. In rejecting the argument, the Court was guided by contract principles 21 and the requirement that for a contract to be incorporated by reference the reference must be “clear 22 and unequivocal.” (Ibid.) The CC&R at issue in Colyear, however, contained no “clear and 23 unequivocal” incorporation and therefore did not apply. (Id.) Indeed, the Colyear court found the 24 CC&Rs at issue did not apply despite the fact that the CC&Rs which were recorded made reference 25 to the disputed CC&Rs. 26 There is no legal theory by which Simonian can be liable for breach of the 1959 CC&Rs 27 because they self-evidently do not apply and nowhere attempt to incorporate by reference CC&Rs 28 that may apply; i.e. from 1928. Indeed, the CC&Rs in Colyear at least referenced the CC&Rs at 643.0 06055463.000 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 issue, and that was still insufficient as a matter of law. Here, the 1959 CC&Rs do not even identify 2 or attempt to incorporate any other CC&Rs by reference. Therefore, the claim fails. 3 IV. THE RECORDING LAWS ALSO INDEPENDENTLY COMPEL THE FINDING THAT 4 THE 1959 CC&RS DO NOT APPLY TO SIMONIAN 5 The claim for breach of the 1959 CC&Rs fails for not only reasons of contract, but also 6 because the recording laws protect Simonian from this exact type of harassment. In Citizens for 7 Covenant Compliance v. Anderson (1995) 12 Cal.4th 345 the California Supreme Court held that 8 CC&Rs could be enforced against real property even if not specifically referenced in a deed of sale 9 so long as it was recorded against the property: “if the restrictions are recorded before the sale, the 10 later purchaser is deemed to agree to them. The purchase of property knowing of the restrictions 11 evinces the buyer's intent to accept their burdens and benefits. Thus, the mutual servitudes are created 12 at the time of the conveyance even if there is no additional reference to them in the deed.” (Id. at 363 13 (emphasis added).) Citizens held that as a matter of fundamental fairness, for CC&Rs to be 14 enforceable not only is notice of them required, but so too is evidence of the buyer’s “intent to accept 15 the burdens and benefits.” (Id. at 363.) In other words, CC&Rs are only enforceable if they are part 16 of the deed or recorded prior to the purchase of the property so that the buyer has notice of them and 17 thereby intends to accept them as part of the purchase. 18 In Werner v. Graham (1919) 181 Cal. 174 disapproved of on other grounds by Citizens for 19 Covenant Compliance v. Anderson (1995) 12 Cal.4th 345 the California Supreme Court held certain 20 land use restrictions did not apply to the subject property. While the deeds at issue in Werner were 21 each independently sold with certain restrictions, there was no specific reference to a common plan 22 such that landowners of other parcels could sue to enforce their application. Its holding was premised 23 upon the fact that “there is no language in the instruments between the parties—that is, the deeds— 24 which refers to a common plan of restrictions, or which expresses or in any way indicates any 25 agreement between grantor and grantee that the lot conveyed is taken subject to any such plan.” (Id. 26 at 185.) 27 Similarly, in Riley v. Bear Creek Plan. Comm. (1976) 17 Cal.3d 500, disapproved of on other 28 grounds by Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, the California 643.0 06055463.000 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 Supreme Court found that CC&Rs recorded against certain real property after the owner’s acquisition 2 of the parcel were unenforceable. The Court’s holding was supported by the policy that landowners 3 ought to know what covenants, codes, and restrictions may apply to their property prior to the 4 purchase of it: 5 The grantee of property subject to mutually enforceable restrictions takes not just a servient tenement but, as owner of a dominant tenement, acquires a 6 property interest in all other lots similarly burdened for the benefit of his property. That fact significantly affects the expectations of the parties and 7 inevitably enters into the exchange of consideration between grantor and grantee. … Thus, the recording statutes operate to protect the expectations of 8 the grantee and secure to him the full benefit of the exchange for which he bargained. 9 Where, however, mutually enforceable equitable servitudes are sought to be 10 created outside the recording statutes, the vindication of the expectations of the original grantee, and for that matter succeeding grantees, is hostage not only to 11 the good faith of the grantor, but, even assuming good faith, to the vagaries of proof by extrinsic evidence of actual notice on the part of grantees who 12 thereafter take a part of the servient tenement either from the common grantor or as successors in interest to his grantees. 13 The uncertainty thus introduced into subdivision development would in many 14 cases circumvent any plan for the orderly and harmonious development of such properties and result in a crazy-quilt pattern of uses frustrating the bargained-for 15 expectations of lot owners in the tract. 16 (Riley v. Bear Creek Plan. Comm (1976) 17 Cal.3d 500, 511–12.) 17 It is for these reasons that “to run with the land, a covenant must touch and concern land, 18 which means it must affect the parties as owners of the particular estates in land or relate to the use 19 of land. The primary characteristic of a covenant running with the land is that both liability upon it 20 and enforceability of it pass with the transfer of the estate. The benefits or burdens pass by 21 implication of law rather than under principles of contract.” (Self v. Sharafi (2013) 220 Cal.App.4th 22 483, 488 (emphasis added).) 23 Here, the TAC admits the 1959 CC&Rs are only recorded against Bardis’ property, 1929 only 24 Berte’s, and 1928 only against Simonian. (TAC ¶ 17, 25.) Bardis nonetheless contends he can sue 25 Simonian for breach of the 1959 CC&Rs because, according to Bardis, “the 1959 CC&Rs impose 26 their obligations on the Simonians as a landowner living within ½ mile of Bardis.” (TAC ¶ 25.) But 27 to be enforceable against Simonian, the CC&Rs must either be recorded against his property, or the 28 CC&Rs must be clearly incorporated by reference. Here, Bardis admits that 1959 are not recorded 643.0 06055463.000 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 against Simonian’s property and on its face those CC&Rs do not attempt to incorporate by reference 2 CC&Rs that may apply to Simonian. Therefore, the demurrer should be sustained on this independent 3 basis because the recording statutes legally forbid enforcement of the 1959 CC&Rs against Simonian. 4 V. CLAIMS FOR BREACH OF THE CC&RS FROM 1928 AND 1929 FAIL FOR 5 NUMEROUS INDEPENDENT REASONS 6 The TAC appears to be premised upon Simonian’s breach of the 1959 CC&Rs and Bardis 7 brings his claim thereon. (See, ¶¶ 24, 25, 26, 37, 39.) To the extent Bardis is also alleging breach 8 of the CC&Rs from the years 1928 or 1929, he has failed to separately label them as separate 9 causes of action as required by California Rule of Court 2.112. And, fundamentally, claims for 10 breach of the CC&Rs from 1928 and 1929 still fail for the reasons discussed below. 11 A. The Court Did Not Provide Bardis Leave To Sue For Breach Of The CC&Rs From 1928 or 1929 12 13 The TAC exceeds the grant of leave to amend and should be rejected on that ground. 14 “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to 15 amend, the plaintiff may amend his or her complaint only as authorized by the court's order.” 16 Zakk v. Diesel (2019) 33 Cal.App.5th 431. In Zakk, the Court of Appeal affirmed a demurrer to a 17 cause of action for promissory estoppel was properly sustained on the ground that the prior 18 complaint included no such cause of action and leave to amend was only provided to add a cause 19 of action for quantum meruit. The Court’s holding was guided by practical policy considerations: 20 “The granting of leave to amend after a demurrer is sustained on one ground does not give the 21 plaintiff a license to add any possible cause of action that might not be subject to dismissal on that 22 ground. Otherwise, there would be virtually no limitation on amendments following the sustaining 23 of a demurrer.” (Id. at 456.) 24 Here, the Court was explicit at oral argument on the demurrer that leave to amend was only 25 being provided to allow Bardis to allege facts showing the CC&Rs from 1959 somehow apply to 26 Simonian. Bardis was not provided carte blanche to allege whatever he wanted, and the Court 27 never permitted Bardis to sue for stale claims already engaged in the Berte Litigation. For this 28 reason alone, to the extent a claim for breach of the CC&Rs from 1928 or 1929 is being made, 643.0 06055463.000 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 they fail, and the demurrer should be sustained on this basis. 2 B. Davis-Sterling Has No Application And Is Also Outside The Scope Of Leave 3 For the first time, Bardis alleges in the TAC that even if he cannot enforce the CC&Rs 4 pursuant to their own terms, or through incorporation by reference, he can nonetheless sue pursuant 5 to the Davis-Sterling Act and Civil Code § 5975. This argument fails for three independent reasons: 6 First, Bardis’ leave to amend does not extend to include claims for breach of the Davis- 7 Sterling Act. Therefore, it should be dismissed on this basis. 8 Second, and to the extent Bardis is arguing Davis-Sterling provides him with a viable claim 9 for breach of the 1959 CC&Rs against Simonian, such argument fundamentally misapprehends the 10 way in which CC&Rs operate. Civil Code § 5975 provides that “The covenants and restrictions in 11 the declaration shall be enforceable equitable servitudes… [and] these servitudes may be enforced 12 by any owner of a separate interest or by the association, or by both.” This Code provision simply 13 expands the pool of persons who may be eligible to sue for violation of CC&Rs that are properly 14 recorded and when the defendant is subject to them. Under the 1959 CC&Rs, Simonian is neither 15 the Grantee nor a successor in interest to the Grantee, and they are not recorded against its property 16 nor incorporated by reference. Therefore, they have no application, and neither does Civil Code § 17 5975. The Code provision doesn’t rewrite all of California law and make persons otherwise not 18 bound by CC&Rs subject to them even if they are not recorded against the property or self-evidently 19 applicable pursuant to their own terms. 20 Third, the Code provision explicitly states: “unless the declaration states otherwise these 21 servitudes may be enforced by any owner of a separate interest or by the association, or by both.” 22 (emphasis added.) Here, each of the CC&Rs specifically provide who can sue and limit their 23 enforcement; 1959 people within a half-mile, and 1928 and 1929 only “parties aggrieved.” They are 24 therefore outside the ambit of Civil Code § 5975 which only applies if the declaration does not provide 25 who can sue, then anybody can. Functionally, if there is no “who” in the CC&Rs, then Civil Code 26 § 5975 says “everyone.” Here, each of the CC&Rs provide a “who” as to the capacity to sue. 27 /// 28 /// 643.0 06055463.000 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 C. Bardis Admits 1929 Are Not Recorded Against Simonian’s Property And Therefore The Recording Statutes Protect Simonian 2 3 As discussed infra, the recording statutes operate to protect homeowners and provide notice 4 of the rules and restrictions for their property. (Citizens, supra, 12 Cal.4th 345.) The TAC admits 5 the 1929 CC&Rs are only recorded against Berte’s property and therefore Simonian cannot be liable 6 under them. (TAC ¶ ¶ 17, 25.) Therefore, a claim for breach of them against Simonian fails for this 7 independent reason. 8 D. Bardis Does Not Allege Any Unlawful Trimming Occurred In The Area Described By Metes And Bounds In The 1928 Or 1929 CC&Rs 9 10 In order to competently allege a breach of the 1928 or 1929 CC&Rs, Bardis must identify the 11 property which it contemplates, then allege that trees were cut in that area. Indeed, the sixth condition 12 in the 1928 CC&Rs explicitly provides: “no trees of any kind or character located upon the premise 13 herein described shall be cut or removed therefrom without the consent in writing of the Grantor.” 14 (TAC, Ex. B; 1928 CC&Rs [SIXTH clause].) The TAC fails to allege facts establishing where the 15 “premises herein described” are located and that the trees at issue were “cut or removed” on said 16 premises. Therefore, the claim fails because it fails to allege the threshold necessary fact to establish 17 a breach of the 1928 or 1929 CC&Rs by its own terms. 18 E. Even If The TAC Had Alleged The Alleged Cutting Occurred Within The Area Described In The 1928 CC&Rs, Such Allegations Should Be Disregarded As A Sham 19 20 Pleadings that contain “inconsistent factual allegations” without explanation must be 21 scrutinized and rejected. (Thompson v. Cnty. of Fresno (1963) 59 Cal.2d 686, 690; Hendy v. Losse 22 (1991) 54 Cal.3d 723, 743 [affirming demurrer, without leave to amend, when amended complaint 23 omitted harmful allegations from original complaint].) As stated in Cantu v. Resolution Trust Corp. 24 (1992) 4 Cal.App.4th 857, 877: 25 [P]laintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. The 26 principle is that of truthful pleading... Under such circumstances, the court will disregard the falsely pleaded facts and affirm the demurrer. [citations omitted; 27 emphasis in original] 28 643.0 06055463.000 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 The TAC acknowledges the obvious: Bardis is suing Simonian for the exact same trees at 2 issue which Simonian being sued for by Bardis’ nephew Berte so that Berte can have additional 3 leverage in his ongoing civil litigation against Simonians. (TAC ¶ 43.) Indeed, the TAC alleges: 4 “Defendants wrongfully trimmed approximately 50 Monterey Pine trees, of which approximately 20 5 have died and 8 are dying.” (TAC ¶ 48.) This allegation is almost 100% identical to what Berte 6 alleges in his Second Amended Complaint: “Plaintiffs allege that Defendants unlawfully trimmed 7 approximately 50 of their Monterey Pine trees, of which numerous trees, 20 have already died and 8 8 are dying.” (Sarabian Decl. ¶ 4, Ex. 2; Request For Judicial Notice ¶ 2, Ex. 2 [Berte SAC ¶ 48] 9 (emphasis added).) Note the slight distinction between the two allegations, with the TAC removing 10 the word “their.” This was done intentionally. Even though the TAC is wholly derived from the 11 same set of operative facts as is the Berte Litigation 1, (with its counsel at the hearing on the demurrer 12 to the First Amended Complaint admitting they are indeed the same trees at issue) the TAC removes 13 the allegation that the trees were on the Berte Property exclusively because this Court granted 14 Simonian’s Motion for Summary Adjudication in the Berte Litigation on this exact issue: 15 “Defendants accordingly have met their burden to show there is no triable issue of fact as to the 9th 16 cause of action premised upon Defendants cutting trees on their own property, and Plaintiffs have not 17 met their burden to show that a triable issue of fact exists based upon the presently operative 18 pleadings.” (Sarabian Decl. ¶ 5, Ex. 3; Request For Judicial Notice ¶ 3, Ex. 3.) Therefore, any attempt 19 to argue trees were trimmed on Simonian’s property should be disregarded as a sham pleading as 20 Bardis is clearly attempting to breathe life in an otherwise defective complaint that failed in the Berte 21 Litigation. 22 F. Bardis Does Not Competently Allege He Has Standing To Sue Under 1928 Or 1929 CC&Rs 23 24 Every action must be prosecuted in the name of the real party in interest. CCP § 367. If a 25 plaintiff’s lack of standing to sue appears on the face of the complaint or from matters judicially 26 noticeable, a general demurrer lies for failure to state a cause of action in this plaintiff. (County of 27 1 28 The photos appended to the TAC as Ex. 4 are from the Berte Action. 643.0 06055463.000 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009.) 2 The 1928 and 1929 CC&Rs only provide standing to the “parties aggrieved.” Bardis makes 3 no effort – quite literally, none – to allege sufficient facts showing he is a “party aggrieved” and thus 4 has standing. Instead, the TAC alleges in conclusory fashion that “under this unambiguous language 5 of the Eleventh Restriction, Bardis is a party ‘aggrieved’ and may enforce the CC&Rs against the 6 Simonians.” (TAC ¶ 60.) The absence of competent facts attempting to establish that Bardis is a 7 party “aggrieved” is not a bug of Bardis’ action, but rather a feature of it. Consider that on two 8 separate occasions Bardis has sued Simonian exclusively for breach of the 1959 CC&Rs (which is 9 likely the case in the TAC, but it is hard to determine because of how it is pled). Bardis never sued 10 for Simonian alleged breach of the 1928 or 1929 CC&Rs. Why? He cannot say it is because he was 11 unaware of these CC&Rs existence inasmuch as Berte amended his complaint in June to sue for 12 violation of both 1928 and 1929’s CC&Rs for the exact same trees. 13 Rather, Bardis sued only pursuant to 1959 instead of 1928 or 1929 because Bardis cannot 14 establish standing to sue under 1928 or 1929. Under the CCC&Rs from 1959, persons who can sue 15 for breach of them include those within a half mile of the property identified within it. (1959 CC&Rs 16 Enforcement (c).) There is no requirement that a party establish they have been aggrieved; standing 17 to sue is exclusively determined by geographical bounds. Contrast the standing provision in the 1959 18 CC&Rs to the one contained in 1928 and 1929, both of which require alleging facts showing the party 19 has been “aggrieved.” Bardis’ choice to twice sue for breach of CC&Rs from 1959 should be read 20 for what it is: a recognition that he lacks a sufficient injury to sue for CC&Rs from 1928 or 1929 and 21 now only attempts to do so to salvage his fatally defective complaint. 22 To achieve standing under the 1928 CC&Rs, Bardis must allege he is a party aggrieved for 23 the tree trimming that occurred on “said premises,”; i.e. only the trees subject to the 1928 CC&Rs, 24 not from all trees that were allegedly trimmed. The TAC, however, never alleges how many (if any) 25 trees were allegedly cut or trimmed on the property identified in the 1928 CC&Rs. Indeed, there 26 were likely zero such trees given that Berte failed to allege any unlawful trimming on Simonian’s 27 property. Therefore, the TAC would need to allege sufficient facts showing Bardis suffered an actual 28 injury from the trimming or cutting of trees exclusively on the property described in the 1928 CC&Rs. 643.0 06055463.000 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 Even if the Court were to consider the number of trees trimmed to be 50 as Bardis alleges 2 (TAC ¶ 48) (even though it is surely less given that many/all of the trees were allegedly cut on Berte’s 3 property), this would still be insufficient show Bardis is aggrieved. Could a frequent visitor to the 4 Pebble Beach area sue for violation of the CC&Rs because they enjoy the aesthetic of the community? 5 Could someone located in the adjacent city of Carmel sue because they frequently drive through the 6 Pebble Beach area? How has Bardis suffered a particular injury from the alleged trimming or cutting 7 of – at the very most – fifty trees on property he does not own when located inside a forest containing 8 hundreds of thousands of trees 2? Has he alleged an economic injury? Can he contend he’s suffered 9 a diminution in property value proximately caused by the cutting of fifty trees on a neighbor’s 10 property? Does he maintain a property interest in the trees cut? Has the view from his property 11 changed? Is Simonian, or any other member of the Pebble Beach community, subject to infinite 12 lawsuits from each and every resident if there is a single tree cut without permission because it 13 potentially injures the forest’s ecosystem? Bardis has simply suffered no actual injury, admitting in 14 his complaint that he brings it to “protect the natural beauty of the Del Monter Forest, Pebble Beach, 15 [and] Monterey County.” (TAC ¶ 3.) Pebble Beach is in need of no such public guardian and the 16 law is not so elastic so as to afford any persons who enjoy the natural beauty of “Del Monte Forest, 17 Pebble Beach, and Monterey County” the right to sue for a breach of CC&Rs. 18 Consider as well that in this litigation Bardis twice sued Simonian for unlawful business 19 practices. In both demurrers, Simonian successfully argued Bardis lacked standing to sue for a 20 violation of the UCL because to bring a UCL claim the plaintiff must demonstrate: “(1) a loss or 21 deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) 22 show that that economic injury was the result of, i.e., caused by, the unfair business practice or false 23 advertising that is the gravamen of the claim.” (Hansen v. Newegg.com Americas, Inc. (2018) 25 24 Cal.App.5th 714, 723-724.) This Court twice sustained demurrers on the ground that Bardis did not 25 26 2 The Del Monte Forrest is 10.6 square miles and heavily saturated with trees throughout. https://en.wikipedia.org/wiki/Del_Monte_Forest,_California. Pouring a cup of chlorine in the 27 ocean does not give beachgoers standing to sue for an injury and neither does Bardis have 28 standing to sue for the alleged unlawful trimming of a handful of trees in a ten square mile forest. 643.0 06055463.000 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 competently allege an injury in fact. The standard should be no different when determining whether 2 a plaintiff qualifies as a “party aggrieved,” under the CC&Rs. Bardis has had three chances to allege 3 an actual, palpable injury. He has failed to do so, and the demurrer should be sustained on this basis. 4 VI. THERE IS NO ACTUAL CONTROVERSY AND DECLARATORY RELIEF IS 5 UNNECESSARY 6 “To assert a cause of action for declaratory relief, Code of Civil Procedure section 1060 7 requires that there be an actual controversy relating to the legal rights and duties of the respective 8 parties, not an abstract or academic dispute.” (Centex Homes v. St. Paul Fire & Marine Ins. Co. 9 (2015) 237 Cal.App.4th 23, 29.) “The fundamental basis of declaratory relief is the existence of an 10 actual, present controversy over a proper subject. Courts require that a legally cognizable theory of 11 declaratory relief is being pursued, in order for such a cause of action to be stated. A matter is not 12 justiciable or appropriate for resolution through declaratory relief unless the proper criteria are 13 present. One cannot analyze requested declaratory relief without evaluating the nature of the rights 14 and duties that plaintiff is asserting, which must follow some recognized or cognizable legal theories, 15 that are related to subjects and requests for relief that are properly before the court.” (Otay Land Co. 16 v. Royal Indem. Co. (2008) 169 Cal.App.4th 556, 562.) Cal. Civ. Proc. § 1061 “The court may refuse 17 to exercise the power granted by this chapter in any case where its declaration or determination is not 18 necessary or proper at the time under all the circumstances.” 19 Here, Bardis identifies the “controversy” needing adjudication as whether “Bardis and other 20 owners in the area have the right to sue for violations of the CC&Rs imposed on the Simonians in the 21 Simonians’ deed, and whether the Simonians are proper party defendants bound by those CC&Rs 22 and answerable to Bardis.” (TAC ¶ 71.) This vague statement does not constitute an actual 23 controversy between the parties appropriate for declaratory relief for multiple reasons. First, if the 24 demurrer is sustained, then Bardis will have his declaration that Simonian is not obligated to answer 25 to him on the CC&Rs. Second, this is the exact kind of “academic dispute” that courts avoid; Bardis 26 has not suffered an actual injury but instead asks the Court to advise him of his claimed rights despite 27 suffering no loss. Third, the declaration is vague and ambiguous and therefore not properly before 28 the Court. Is Bardis asking whether he could, under any conceivable circumstance, sue Simonian for 643.0 06055463.000 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 breach of CC&Rs that apply to Bardis, to Simonian, or to Berte? Does he seek a declaration regarding 2 the CC&Rs provision relating to cutting/trimming of trees, or something different? The TAC does 3 not identify which specific provision of which specific CC&R Bardis wants a declaration regarding 4 his capacity to sue Simonian. The declaratory relief cause of action is redundant of and derivative to 5 the primary cause of action, not properly the subject of a declaratory relief claim, and seeks 6 adjudication of an “academic dispute,” for which Bardis has suffered no injury. The demurrer to this 7 cause of action should be sustained (again) without leave. 8 VII. CONCLUSION 9 10 This litigation is offensive and it needs to end. Bardis has no claims versus Simonian because 11 he sues on CC&Rs that do not apply. And to the extent he’s alleging a violation of the only set of 12 CC&Rs that do apply, he has failed to include competent allegations establishing the elements of the 13 claim, has no right to sue on them, and has suffered no cognizable injury. This meritless matter must 14 finally be dismissed, with prejudice. 15 Dated: April 15, 2024 WHITNEY, THOMPSON & JEFFCOACH LLP 16 17 By: 18 Marshall C. Whitney Jacob S. Sarabian 19 Attorneys for PETER T. SIMONIAN and PATRICIA L. SIMONIAN 20 21 22 23 24 25 26 27 28 643.0 06055463.000 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT 1 PROOF OF SERVICE 2 Christo Bardis v. County of Monterey, et al. Case No. 22CV001790 3 STATE OF CALIFORNIA, COUNTY OF FRESNO 4 At the time of service, I was over 18 years of age and not a party to this action. I am 5 employed in the County of Fresno, State of California. My business address is 970 W. Alluvial Ave., Fresno, CA 93711. 6 On April 15, 2024, I served true copies of the following document(s) described as 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S 8 THIRD AMENDED COMPLAINT on the interested parties in this action as follows: 9 Mark E. Ellis Attorneys for Plaintiff Christo Bardis Ellis Law Group, LLP 10 1425 River Park Drive, Suite 400 Sacramento, CA 95815 11 Email: mellis@ellislawgrp.com restrella@ellislawgrp.com 12 jmueller@ellislawgrp.com jhyde@ellislawgrp.com 13 14 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and 15 mailing, following our ordinary business practices. I am readily familiar with the practice of Whitney, Thompson & Jeffcoach LLP for collecting and processing correspondence for mailing. 16 On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with 17 postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Fresno, California. 18 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 19 document(s) to be sent from e-mail address jbennett@wtjlaw.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the 20 transmission, any electronic message or other indication that the transmission was unsuccessful. 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 Executed on April 15, 2024, at Fresno, California. 23 24 25 Jacquelyn Bennett 26 27 28 643.0 06055463.000 18 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS PETER T. SIMONIAN AND PATRICIA L. SIMONIANS’ DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT